Item N2
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Hugh 1. Morgan
James T. Hendrick
Karen K. Cabanas
Robert CintTOn, Jr,
LA W OFFICES
MORGAN & HENDRICK
317 WfI1TEHEAD STREET
KEy WEST, FLORIDA 33040
TELEPHONE 305.296.5676
FACSTh1ILE 305.296.4331
W _ Curry Harris
(1907-1988)
Hihuy U _ AlbUlY
(1920-1999)
FAX TRANSMISSION
TO: COMMISSIONER SONNY MCCOY
COMMISSIONER GEORGE NEUGENT
MAYOR DIXIE SPEHAR
COMMISSIONER DAVID RICE
MAYOR PRO TEM MURR.L\Y NELSON
RICHARD COLLINS, ESQ.
JIM ROBERTS
BELLE DESANTIS, CLERK'S OFFICE
TIM MCGARRY
FAX #: 292-357~
872-9195" /
292~3466/
289-630~
852-7162' /
292-3516-'1
292-454~
295-3663
289-2536
FROM: KAREN CABANAS, ESQ.
DATE: JUNE 16, 2003
SUBJECT: GROWTH MANAGEMENT LITIGATION REpORT
TRANSMITTER: JONI
Total number of pages including this cover sheet: 5
ORIGINAL DOCUMENT(S):
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OVERNIGHT
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296-5676. The folJowillg is our flU nuwtlcr 305-296-4331.
p.o. Box 1117, KEY WEST, FL 33041 $ TELEPHONE 305296-5676 $ FACSIMILe 305296-4331
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GROWTH MANAGEMENT LITIGATION REPORT
TO:
BOCC; Richard Collins; Tin1 McGarry; Jim Roberts
FROM:
Karen Cabanas
DATE:
June 13, 2003
Vacation Rentals
N eumont (Federal Class Action) - Federal class action case alleging vacation rental ordinance was
prematurely enforced and is an unconstitutional talcing of Plaintiffs' properties. The Court had
previonsly dismissed all but Counts 10 through 13 of Plaintiffs' complaint, leaving only due
process/statutory notice issue for adjudication. Court has recently granted surmnary judgment on
Count X, ruling that COlmty complied with statutory notice requirements. The other remaining
counts are all directly based on Count X, so final judgment on all relnaining issues is anticipated.
Plaintiffs are attempting to expand their due process claim beyond the allegations of Count X, but
their position is not supported by the bare allegations of the complaint. Further, the statute of
limitations has now expired to bring such an expanded claim. Case was set for trial June 10, but has
been removed from the trial calendar due to the recent ruling in favor oHhe County. Plaintiffs have
stated that they intend to appeal to the 11th Circuit once a final judgment is entered as to all
remaining issnes. ($76,528.75 as of May 31,2003).
Takin2S Claims
New Port Largo - State "physical occupation" takings claim that had been remanded back to state
court when federal claims were dismissed. Cross-motions for Summary Judgment were heard June
6. The Court has vacated its prior order which had granted partial summary judgment in favor of
Monroe County, holding that any physical taking may only have occurred within a two-month
period. Case has been taken over by Alan Greer, Esq. who handled original litigation. Case is set for
trial in January, 2004 and mediation is to be held in July. ($22,552.00 as of May 31,2003).
Tropic Leisure Recreation - Takings claims regarding property on Upper Matecwnbe in which
Plaintiffs claim they were denied building permits for new construction- Monroe County was granted
final summary judgment and awarded costs of approximately $4,800. Time for filing of an appeal
has expired. ($27,201.50 as of May 31, 2003).
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Galleon Bay - Petition for Certiorari review ofBOCC's decision to deny vested rights application.
Case has been rewMsigned to lower keys division. Plaintiffs have also filed a separate action for
inverse conderrmation. Judge Payne previously granted the County's motion to dismiss with
prejudice because Plaintiffs can pursue commercial fishing use of property. That order was vacated
on Plaintiffs' motion for re-hearing and Plaintiffs have filed their second amended complaint and the
County's motion to dismiss has been filed. Hearing bas been postponed at Plaintiffs' request.
Judge Payne also entered final judgment in favor of Plaintiffs as to their vested rights appeal.
(Special Master had recomn1ended granting application; BOCC rejected recommendation and issued
Resolution denying vested rights- Plaintiffs appealed to circuit court and BOCC's resolution was
reversed). Moruoe County further appealed by filing a Petition for Certiorari with Third District
Court of Appeals. Third District accepted jurisdiction, all briefs have been filed and the parties
await ruling. ($16,932.75 as of May 31,2003) (does not include prior Galleon Bay matters).
Phelps/Hardin -. Clainl brought in federal court for due process and inverse condemnation based on
code enforcement proceedings that reSLllted in a lien on Plaintiffs' property. Awaiting discovery
responses from Plaintiff. ($2,691.50 as of May 31,2003).
Pontin - Case alleging temporary and permanent taking of property due to allegedly conflicting
regulations of County and ACOEIDEP wherein each required the other's plior approval before
issuing permits to fill land & plant trees. Monroe County's motion to dismiss was granted based on a
prior beneficial use order stating the level of development allowed on the property. Plaintiff may
develop ifhe can obtain fill permits fromDEP. Ifnot, his taking claim exists exclllsively as to DEP.
($3,390.00 as of May 31,2003).
Good - Seeking declaratory relief and takings claim for -16 acre Sugarloaf Shores property due to
commercialmoratoriurn which began January 4, 1996. Plaintiffhas filed an amended complaint and
the County's motion to dismiss will be heard June 16. ($6,015.00 as of May 31,2003).
Emmert - Complaint seeking inverse condemnation based on partial granting of Beneficial Use
application. Plaintiffs were granted partial beneficial use from wetland regulations, thus expanding
the buildable area of their vacant Ocean Reeflot from approximately 1,800 to 2,500 square feet.
However, Plaintiffs cannot build within this area due to Ocean Reef Association deed restrictions
requiring setbacks in excess of those required by Monroe COWlty. Plaintiffs allege that Monroe
County's actions have resulted ill a denial of all economic use oftheir property, despite expressly
allowing a 2,500 square foot buildable area. Monroe County's motion to dismiss was denied on
grounds that court has original jurisdiction over constitutional claims & cannot be bound by Hearing
Officer's findings. Parties are proceeding with discovery- ($1,225.00 as of May 31,2003).
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Other Matters
Taxpayers for Electrification of No Name Key - Declaratory, vested rights, and ~ 1983 claims
challenging Monroe County's policy that installing commercial electric service to No Name Key is
prohibited by the 2010 comprehensive plan. Proposed settlement agreement was denied by BOCC;
case will proceed in litigation. Property owners opposing electrification were granted leave to
intervene. Court granted Monroe County's motion for summary judgment. Plaintiffs have filed a
Notice of Appeal to the Third District, but case was remanded to trial court for procedural defects in
finality of judgment. ($14,577.00 as of May 31, 2003).
Clay (Big Pine Moratorium) - Complaint filed against Monroe County alleging various claims
(takings, vested rights, etc.) based on the de facto building moratorium on Big Pine due to the traffic
level of service and concurrency mandate. Judgment was entered in favor of Monroe County on
basis that concurrency is a state-imposed lllandate, not a COUllty regulation; also based on fact that
FDOT is responsible for upgrading U.S. 1, not Monroe County and issuance of any building penTlits
by Monroe County may violate state concurrency and Endangered Species Act provisions. Plaintiffs
appealed to 3,'d Disnict Court of Appeals which affirmed the trial court's ruling in favor OfCOUlJty.
Plaintiffs have moved for rehearing of 3rd DCA's order. Awaiting ruling. ($17,144.00 as of May 31,
2003).
Ambrose - Declaratory action claiming vested rights under ~380.05(18) based on filing of
subdivision plats. Pursuant to sllmmary judgment proceedings and his previous orders, Judge Payne
ordered that Plaintiffs prove ownership of a single Plaintiffs' lot so that legal issues may be appealed
rather than speJ1d extensive time in trial court litigating ownership issues as to each lot at issue.
Various environmental groups were also granted leave to intervene. Court entered final summary
judgment for approximately 75 Plaintiffs. Final Order has been entered by Court and all Defendants
have filed notices of appeal. Oral argument was held February 5, 2003. Awaiting mling.
($55,973.75 as of May 31, 2003).
Upper Keys Citizens Association - Two separate cases: (1) Appeal to Div. of Admin. Hearings of
Pla:nning Commission's approval of North Key Largo sub-station for Fla. Keys Electric Co-Op.
County's brief has been submitted. Oral argument before Third DCA was held June 18 on
Petitioner's appeal ofthe circuit court dismissal of certiorari action. Third DCA has entered its order
affimling the trial court's disinissal of the certiorari action. All briefs have been filed in DOAH
appeal and oral argument was held last week. Decision below was upheld, but Plaintiffs have filed
further appeal to circuit court. ($11,677.50 as of May 31,2003).
Lawson - Appeal of Monroe County Planning Commission resolution. No Initial Briefhas been
filed and Appellant has requested extension of time to file. ($112.50 as of May 31, 2003).
Johnson - Writ of Mandamus challenging Director ofPlamllng's determination that application for
"boundary determination" by alleged error requires zoning map amendment application. Applicant
applied for bOlUldary determination based on allegation that BOCC previously adopting change in
zoning. Director's determination was based on review of records failing to show any error or prior
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consideration of such zoning change. Director rejected application and infomled Owner to properly
file for zoning map amendment. (Boundary determination may be placed on BOCC agenda without
the public notice required for a zoning change). Hearing on mandamus is set for June 30. ($717.50
as of May 31, 2003).
Stoky _ Certiorari appeal of County's denial of permit to reconstruct certain square footage due to
various nonconfonnities with existing LDRs. Previous appeal was taken to BOCC for final ruling &
BOCC affintled staffs fmdings & interpretation. Case was initially filed over I year ago & plaintiffs
have noW filed an amended complaint. Momoe County's motion to dlsmiss and response to
certiorari has been filed. Oral argument is set for June 30. ($2,745.00 as of May 31,2003).
Department of Community Affairs v. Monroe County - Case before Land and Water
Adjudicatory Commission alleging that County h as failed to comply with various Comp Plan
requirements by failing to routinely amend endangered species maps, and vegetation surveys as to
high & moderate quality hammock areas. Also alleges that County has allowed higher ROGO scores
that should have been allocated due to failure to amend maps, thereby allowing more residential
development than should have been approved. Settlement discussions are proceeding and case is in
abeyance. ($2,622.50 as of May 31, 2003).
Department of Community Affairs v. G. Contreras; DCA v. D. Contreras - Two petitions by
DCA before FLAW AC challenging residential building permits issued on Key Largo for on same
grounds as above case. ($75.00 as of May 31,2003).
Eads v. Monroe County - Appeal of Historic Preservation Commission decision to deny
rescindment of designation and original declaratory action have been filed. Declaratory action
challenges legitimacy of LDRs governing and establishing HPe. Based on prior rulings by Judge
Garcia, Monroe County has agreed to allow original action to proceed first due to inability to raise
constitutional issues in appeal which may be dispositive of case. BOCC's decision to deny
rescinding historical designation was upheld by Judge Garcia. Plaintiff has also brought a
substantive due process challenge asserting that the regulations are "arbitrary and oppressive" faT
failing to consider the financial impact and cOndition of the structure. Hearing on summary
judgment was held recently and parties are awaiting ruling as to constitutional claim. County has
argued that Court cannot determine financial impact until appeal of demolition and reconstr1.lction
denial is fmal. ($3,357.50 as of May 31, 2003).
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